Rosenblum Schwartz & Fry

Criminal law focus: traumatic brain injury, culpability

Criminal sentencing outcomes in Missouri and nationally have various underlying rationales. Deterrence is often cited when a prison term is meted out in a given case. So too is an inmate's perceived potential to be rehabilitated.

And then there is punishment, which is often a clear factor guiding a judge's or jury's determinations concerning a defendant's future. Central to that is culpability, that is, the notion that a wrongdoer purposefully broke the law, knew there were consequences and must now pay the price.

It has long been a widely held American view that conditions reasonably contributing to diminished culpability should be fully considered in sentencing outcomes. Perhaps a clear mental impairment in a defendant contributed to his or her unlawful behavior. A recent criminal law article notes that there are many instances "when a defendant's cognition is muddled by injury or illness."

When that is the case, fundamental fairness dictates that a criminal sentencing outcome take account of any factor that reasonably points toward mitigation.

Traumatic brain injury (TBI) is a case in point.

Head trauma is the central focus in the above-cited article, which points to widely sourced empirical evidence showing a high prevalence of TBI in the country's prison population.

Although the argument that head injury should be thrust into prominence as a mitigating defense in criminal law matters will always be a slippery slope, this reality is eminently clear: A notably high percentage of American inmates have been objectively determined to have significant brain-related issues.

The U.S. Centers for Disease Control and Prevention recommends that TBI testing be conducted on all individuals once they begin serving their sentences. Unfortunately, that means that head trauma is often medically confirmed only after a defendant is already serving time.

Arguably, that process should be expedited. The aforementioned article stresses that testing at an earlier stage (e.g., indictment) could mitigate punishment for behavior that some individuals "aren't morally or legally responsible for."

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Rosenblum Schwartz & Fry

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